07-004296CB In Re: Senate Bill 64 (Brian Daiagi) vs. * Status: Closed DOAH Final Order on Friday, May 2, 2008.

Summary: A contested verdict-based judgment claim for $4,008,616.63 for paralysis resulting from injuries in dirt bike accident property is recommended favorably, as amended to reduce the amount by $100,000, the amount previously paid.

SPECIAL MASTER’S FINAL REPORT – SB 64 (2008) T

April 9, 2008

Page 2

Mr. Daiagi’s speed, at impact, was determined to be reasonable at 25.6 miles and hour.

Mr. Daiagi suffered spinal fr actures and was paralyzed from

the waist down. He is confi ned to a wheelchair, has bowel

dysfunction and a non-functi oning bladder which requires

24-hour catheterization.

LITIGATION HISTORY: In 1996, Mr. Daiagi filed suit against the SFWMD, and

BellSouthTelecommunications, inc. ("BellSouth"), owner o f

buried cables in the culvert. When it received permission to

install the cables in 1987, BellSouth represented to the

SFWMD that it would erect a fe nce blocking the culvert. An

internal memorandum disclosed that the plan was

abandoned when BellSouth dete rmined the fence was not

necessary to protect the cables . Prior to trial, Mr. Daiagi

settled with BellSouth which subsequently paid him

$200,000.

The major issue at trial and continuing now is whethe r

SFWMD had absolute immunity based on the provisions o f

§ 373.1395, Florida Statutes, t he "recreational use immunity

statute," or whether it had a duty to warn of a known,

inconspicuous dangerous ha zard that constituted an

unforeseeable trap. See Department of Tr ansportation v.

Konney , 587 So.2d 1292 (Fla. 1991). Before trial, the court

denied the SFWMD's motion fo r summary judgment, leaving

to the jury as issues of fa ct whether the property was open

for public use (thus, providi ng absolute immunity to the

SFWMD under the statute), whether the SFWMD knew o f

the dangerous condition, and w hether that condition was

open to ordinary observation or a hidden trap.

In response to the verdict form questions, the jury answered that the land in question was not open to the public because

the SFWMD had not allowed access across the land fo

r

recreational use, for example, as a park or for fishing, and,

therefore, the recr eational land immunity statute was not

applicable. The jury determi ned that Mr. Daiagi was 20

percent negligent and that the SFWMD was 80 percent

negligent for causing his injuries . The total jury verdict was

$5,430,000, which when decreased by 20 percentequaled $4,344,000. The Amended Final Judgment o

f

$4,008,616.63 reflects the seto ff of insurance benefits and collateral sources.

SPECIAL MASTER’S FINAL REPORT – SB 64 (2008) T

April 9, 2008

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In addition to $200,000 from BellSouth, the Claimant has

received $33,000 of the $100 ,000 distribution from the

SFWMD, after $25,000 was deducted for attorneys' fees and $42,000 was deducted for costs.

CLAIMANT’S POSITION: Mr. Daiagi continues to be a wheelchair-dependent

paraplegic. The claim bill accurately reflects the facts, and

should be passed. The Legislat ure has the discretion and, in

2007, passed claim bills that were outside the 4-year limit set

by Section 11.065(1), Florida St atutes. The argument that

the "recreational immunity" stat ute is applicable was rejected

by the jury, the appellate court, and by previously assigned House and Senate Sp ecial Masters.

RESPONDENT’S POSITION: The Respondent makes the following points:

1. The 4-year statute of li mitations in Se ction 11.065(1),

F.S., is applicable and bars a favorable recommendation and

passage of the bill. The limit ation was only waived, during

the legislative session of 2007, in cases against local hospital districts, cities, c ounties, and the state when the

governmental entity supported the passage of the bill or did

not raise the issue.

2. Numerous state senators in considering a prior Daiagi

claim bill indicated that it was incredulous that anyone could

state that a no-trespassing si gn three miles away on the

other side of the canal, even if in existence at the time of the

accident, could reasonably be us ed as a basis to hold the

SFWMD liable when t he area where Mr. Daiagi was injured

was clearly in fact made open and available and used by the

public for outdoor recreation.

3. Recent history has shown us that there are numerous

j ury and court decisions that have been ludicrous and flat out

wrong. One only needs to hea r the words "O. J. Simpson

case" or "McDonald's hot coffee case" to realize that ou r

j ustice system can yield unjust results.

4. Claimant's "case/claim” in essence is based upon

emotion and this is further demonstrated by the comments

found in the claimant's November 9, 2007 response to the Special Masters. The claimant attempts to evoke emotion

by alleging that the District has gone "so far as to impugn the

integrity of the previous Senat e Special Master assigned this

SPECIAL MASTER’S FINAL REPORT – SB 64 (2008) T

April 9, 2008

Page 4

case, Reynold Meyer, by exp licitly alleging that Special

Master Meyer recommended passage of the previously filed

Daiagi claim bill in 2004 because Special Master Meyer had

a sister who suffered from sim ilar injuries as Mr. Daiagi.”

First, the District response di d not mention Mr. Meyer by

name but only referenced "the Senate Special Master."

Further, the District's response stated solely, "it became apparent that the Senate Spec ial Master may have based

his recommendation on emotion as it was revealed that he

had a sister who was a paraplegi c, like Mr. Daiagi.” As

noted on page five of the Distr ict's October 30, 2007,

response, it wasn't just the District that believed that the

Senate Special Master's recomm endation was out of line. In

fact, it was stated by several of the Senators, who voted fo

r

the bill to get outof committee, t hat if the bill came up for any

further review that they woul d vote "no" on the claim bill.

"The Special Master was questioned by the Senate

committee considering the claim bill and based upon the line

of questioning it became ve ry clear that the Senators

recognized that there was no l ogic for District liability and in

fact, an injustice would be served if the District would be

required to pay any more money to Mr. Daiagi."

The District was not attempting to impugn the integrity of the

Senate Special Master but merely making the point that it is likely that a person who is su pposed to be independent may

be influenced, perhaps even unconsci ously, by latent biases

and emotions when a close relative such as a sister is also a

paraplegic as a result of an accident. Clearly, if such a

person were a prospective ju ror, both the Courts and any

defendant would be hi ghly concerned that there would be an

increased likelihood that emotional consider ations and latent

biases would reduce the persons objectivity and skew that

person's opinion even where that person may have the best

of intentions and the utmost inte grity. There is no intent o

r

attempt to impugn the prior Specia l Master's integrity and the

facts which the claimant seeks to avoid clearly demonstrate

that the District was imm une from liability under Section

373.1395, Florida Statutes, becaus e the land was open and

available to the public fo r outdoor recreation and was

accessed by the public for out door recreation without any

genuine issue to the contrary.

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April 9, 2008

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5. Regarding funding the cl aim bill, the Chief Financial

Officer Paul Dumars of the SFWMD wrote, on October 25,

2007, that the SFWMD is self -insured and that a large,

unbudgeted liability claim "of this magnitude" would result in

"extensivehardship and progra mmatic impacts" forcing the

District "to undertake mid-year evaluations and funding

reductions within ad valorem core programs such as Lake

Okeechobee, Kissimmee River, Ever glades . . . functions."

LEGISLATIVE HISTORY: Previous claim bills filed on behalf of Mr. Daiagi were, SB 16

in 2003, which died in the Committee on Rules and

Calendar; and, SB 12 in 2004, th at passed in the Committee

on Natural Resources, was withdrawn from the Committee

on Comprehensive Planning, and withdrawn from furthe r

consideration from the Co mmittee on Finance and Taxation.

CONCLUSIONS OF LAW: In response to the issues raised by the Respondent,

SFWMD, the conclusions of law are as follows:

1. Section 11.065(1), Fl orida Statutes, states:

"no claims against the State shall be presented to

the Legislature more than f our years after the cause

for relief accrued. Any claim presented after this

time of limitation shall be void and unenforceable"

However, because the Legislatur e has demonstrated that it

can and will waive the requirement, as the SFWMD noted,

the claim bill has been reviewed on the merits.

2. With regard to the comm ents regarding the debates ove r

a previous claim bill, the undersigned, having not been the

assigned Senate Spec ial Master at the time, has no

knowledge and is unable to comment.

3. Concerning the issue of whether the jury verdict was

improper and based on emotion, the undersigned, having

not had a Special Master's h earing, must determine the

merits of the claim based on the documents presented,

including the jury verdict form and the appellate court decision.

4. With regard to issues relate d to the family of the previous

Special Master, the undersi gned has no knowledge o r

information.

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April 9, 2008

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Finally, based on the documents provided and reviewed, the

SFWMD failed to warn of a known, inconspicuous

dangerous hazard that consti tuted an unforeseeable trap and was the direct and proximate cause of severe and

permanent injuries to the Claimant.

ATTORNEY’S FEES AND Attorneys' fees are set at 25 percent of any recovery, as

LOBBYIST’S FEES: required by s. 768.28, F.S. Cost s for publications of notice

of the claim bill in thirteen of the sixteen counties of the

SFWMD were $195.19, as of October 1, 2007. Costs and

lobbyists' fees of 7 percent of any monies paid to Mr. Daiagi

are not within the limits set by section 3 of the bill.

OTHER ISSUES: The bill should be amended to reduce the amount of the

award by $100,000 to reflect the amount of the judgment

that has already been paid by the SFWMD.

RECOMMENDATIONS: Based on the foregoing, I re commend that Senate Bill 64

(2008) be reported FAVOR ABLY, as amended.

Respectfully submitted,

Eleanor M. Hunter

Senate Special Master

cc: Senator Alex Diaz de la Portilla

Representative Anitere Flores

Faye Blanton, Secr etary of the Senate

House Committee on Constitution and Civil Law

Michael Kliner, House Special Master

Counsel of Record